Court Sides With Texas, Overturns EPA's Cross-State Rule

UPDATED: Al Armendariz, a former EPA regional administrator, said a court's ruling overturning the EPA's cross-state pollution rule "only delays the inevitable." Texas Attorney General Greg Abbott called the ruling a "victory for federalism."

"The ruling, I think, only delays the inevitable, which is that there is going to be a transport rule that requires utilities to significantly reduce their emissions. And ironically, the judgment is critical of steps the agency took which were designed to make the rule cost-effective. And if anything, the judgment could result in EPA putting a rule forward about a year from now that requires utilities to spend more to reduce emissions than if the cross-state rule had gone into effect. So the delay is unfortunate, but ironically, I think the court’s criticism of some of the steps the [EPA] took to try to make the rule cost-effective might result in the agency moving forward with a rule that costs more to comply than the cross-state rule would have."

Trip Doggett, the chief executive of ERCOT, the Texas electric grid operator, said that the original (and now vacated) rule, which would have had ramifications for Texas coal plants, would have had "potentially far-reaching reliability impacts" on the grid. "As the EPA revisits these cross-state air quality rules, ERCOT hopes to serve as a resource to help ensure that the long-term solution considers the electric reliability issues that affect this electric grid and our region," Doggett said in a prepared statement.

Texas Attorney General Greg Abbott, whose office argued part of the case, is cheering the ruling. In a statement, Abbott said: "Vindicating the state’s objections to EPA’s aggressive and lawless approach, today’s decision is an important victory for federalism and a rebuke to a federal bureaucracy run amok.”

The Environmental Defense Fund decried the court's decision, arguing that the now-vacated rule would have prevented about 1,700 deaths each year in Texas. “The cross-state air pollution rule would have included crucial health protections for Texans, particularly for children and the elderly," said Colin Meehan, EDF's Austin-based clean energy analyst, in a statement.

"The court’s decision means that cross-state pollution from Texas is regulated under the Clean Air Interstate Rule adopted in 2005 by EPA during the Bush administration. Power plants in Texas must comply with both the first phase of the Clean Air Interstate Rule that took effect in 2010 and the second-phase reductions that are required in 2015. ”

The EPA had finalized the rule a year ago, over major protests from Texas politicians and power companies, who feared that it would close some coal-fired power plants and jeopardize the stability of the Texas electricity grid. The U.S. Court of Appeals for the District of Columbia Circuit, which had stayed the rule in January just before it could take effect, ruled Tuesday that the EPA’s rule had “transgressed statutory boundaries,” by the manner in which it implemented the rule, which was aimed at sulfur dioxide and nitrogen oxide emissions.

The court left in place a predecessor rule put forward by the George W. Bush administration, the Clean Air Interstate Rule, but environmentalists said it was considerably weaker than the cross-state rule.

“This is clearly a big blow for breathers in downwind states,” Frank O’Donnell, president of Clean Air Watch, said in an email. The EPA can appeal to the full court (the ruling was decided, 2-1, by a three-judge panel of the court), or it can appeal to the U.S. Supreme Court, O’Donnell said.

Texas politicians are poised to celebrate. In a tweet that appeared shortly after the court’s ruling, Greg Abbott, the Texas attorney general, wrote, “‪EPA overlords suffer another defeat to ‪Texas.”

In a strongly worded dissent, Judge Judith Rogers wrote that the ruling constituted “a redesign of Congress’s vision of cooperative federalism between the States and the federal government in implementing the [Clean Air Act] based on the court’s own notions of absurdity and logic that are unsupported by a factual record.”

Tuesday’s ruling is the second recent court defeat for the EPA. Last week, a different federal court rebuked the EPA over the agency’s rationale for pushing aside Texas’ long-standing and unique “flexible permits” program, which applies to some of the state’s biggest polluters.

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